01996600
11-17-2000
Janie M. Jones, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Janie M. Jones v. Department of Veterans Affairs
01996600
11-17-00
.
Janie M. Jones,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996600
Agency No. 99-3614
DECISION
On August 26, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) concerning her complaint
that the agency discriminated against her in violation of � 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. � 621 et seq.<1> The appeal is accepted by the Commission in
accordance with 29 C.F.R. � 1614.405.
In June 1999, complainant filed a complaint alleging that she was
discriminated against due to her age (DOB: 5/1/34) and disability
(physical/unspecified) when on or about October 9, 1998, she was
permanently reassigned to the position of Social Service Assistant,
GS-186-06. Her complaint also contained additional claims concerning
ongoing harassment; a June 13, 1999 suspension; training; and her
working conditions.
The agency issued a FAD dismissing complainant's reassignment claim
on the grounds that she sought EEO counseling in an untimely manner.
The additional claims were dismissed on the grounds that these matters
were never brought to the attention of the EEO counselor and were not
like or related to the reassignment claim. This appeal followed.
Reassignment
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1)) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record indicates that complainant was reassigned in October 1998;
however, she did not contact an EEO counselor about the matter until
May 7, 1999. The EEO counselor's report indicates that she did not
contact a counselor earlier because �[s]he was not displeased with
the reassignment, but recently realized that the position was not in a
field in which she had any experience.� Although complainant, on appeal,
disputes the counselor's contention that she stated she was pleased with
her �present assignment in psychology,� she never provided an explanation
for why she did not contact a counselor during the time limitation period.
In her appeal statement, complainant stated that �I am well aware of
the time limit [for] filing an EEO complaint.� Consequently, we AFFIRM
the dismissal of this claim.
Additional Claims
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states, in pertinent part,
that an agency shall dismiss a complaint which raises a matter that has
not been brought to the attention of an EEO Counselor, and is not like or
related to a matter on which the complainant has received counseling. A
later claim or complaint is "like or related" to the original complaint if
the later claim or complaint adds to or clarifies the original complaint
and could have reasonably been expected to grow out of the original
complaint during the investigation. See Scher v. USPS, EEOC Request
No. 05940702 (May 30, 1995); Calhoun v. USPS, EEOC Request No. 05891068
(March 8, 1990).
Contrary to the agency's assertions, complainant stated that she did raise
these additional claims with the EEO counselor. Complainant maintained
that these claims were her primary reason for seeking counseling, not
the reassignment issue. According to complainant, she had to remind
the counselor, on several occasions, about the additional claims.
Complainant indicated that she �[w]as appalled by [the counselor's]
refusing to listen and acknowledge or recognize my complaint issues.
She [the counselor] became upset because I would redirect her questions
for clarity.�
After a careful review of the record, we find that the preponderance
of the evidence supports the complainant's position that she raised
these matters during counseling. Although the EEO counselor's report
only discussed the reassignment issue, we note a letter contained
in the record dated May 19, 1999. In the letter, the EEO Regional
Officer informed management that complainant had sought counseling.
According to the letter, �the issue raised related to harassment on
the basis of age and physical handicap.� The agency's position, i.e.,
that complainant only raised the reassignment issue, is rebutted by the
May 19, 1999 letter. It is the decision of the Commission to REVERSE
the agency's dismissal of the additional claims raised by complainant
in her complaint and to REMAND these matters for further processing in
accordance with this decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__11-17-00____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.